Contradictions in CSO regulation in China

 

Karla Simon

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Contradictions exist because of the Foreign NGO Law and its intersection with the more recently available draft Charity Law released by the government, which I have been invited to comment on. The Charity Law draft is extremely supportive of philanthropy, while the Foreign NGO Law is repressive towards foreign NGOs that provide funding to domestic organizations carrying out certain types of activity, such as rights advocacy. The draft Charity Law requires the government to do many things to foster charity, even going so far as to encourage schools to educate the young about the subject (this is China, after all!).

As I pointed out in my 2013 book Civil Society in China, it is definitely not true that China lacks a culture of philanthropy. And recent giving of huge amounts of money by such people as Jack Ma indicates that China’s wealthy are to a great extent already in tune with efforts to promote philanthropy in China. The proposed Charity Law is very much designed to encourage giving.

It is made up of 12 chapters, only 11 of which are substantive, and 122 articles, with the last being the effective date. The draft has had its first reading,  with the second expected this month, and the third in June. Whether it passes remains to be seen, because there will need to be greater clarity about how it interacts with the Foreign NGO Law. Although academics have urged that foreign charities be given great leeway when they operate in China), the draft is not very clear about the applicable rules.

Article 17 merely states as follows: ‘Foreign NGOs in China that exist to carry out charitable activities may be charitable organizations, and they should be legally registered in China. They may not carry out charitable activities themselves but must do so in cooperation with Chinese charities.’ There is nothing about where they register (under the Foreign NGO Law it would be with Public Security agencies rather than the Ministry of Civil Affairs) or how they must go about registering their funding and their work plans (which must be filed with the registering agencies under the Foreign NGO Law). Click here for more on the impact of the Foreign NGO Law .

Chinese commentators have said that foreign charities are welcome in China, but that the authorities do not welcome rights advocacy groups. Local commentators suggest the Foreign NGO Law is important to separate the ‘sheep’ from the ‘wolves’ with respect to foreign organizations. .

The Charity Law draft is very clear about a variety of aspects of charity by domestic charity organizations (cishan zuzhi) and charitable trusts. It also contains a chapter on volunteers and encourages volunteering in many significant ways. The major innovation it contains is that it would allow a wide variety of organizations to directly register with the Ministry of Civil Affairs or their local bureaus of civil affairs. This is an extremely important change in the law! The list of those that can directly register (without a sponsor) includes ‘legal persons, or other organizations, [providing] donations of property, and providing volunteer services and volunteer efforts to

  1. Help the old, disabled, young people, the poor, aid in disaster relief, and other similar activities;
  2. Promote education, science, culture, TV, sports, environmental protection, and other similar activities; and
  3. Maintenance of other public interest activities.’

The Ministry of Civil Affairs had been allowing provinces and self-governing municipalities to permit such registrations at the local level, and these had generally been allowed in all provinces except the troubled regions of Xinjiang and Tibet. ICCSL is conducting a study of the direct registration regimes in seven provinces and will be writing an article about these efforts in the next issue of IJCSL. The website currently features a chart describing the variety of regulations in the seven provinces.. It was expected that national regulations would be issued following the patterns adopted in the provinces, but this draft Charity Law supersedes such a need.

The law is extremely progressive in other ways, and it does not impose draconian penalties as the original 2005/06 draft would have. In the next two monthly blog posts I will analyse more of what is in the law and explain some of the other provisions. I will also reflect on conversations I have in May in China.

Read my previous blog post on China’s move to regulate foreign NGOs here>

Karla W Simon (西 门 雅) is chairperson of ICCSL.


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